2
NIENABER JA:
I have had the benefit of reading the judgment prepared by Smalberger JA. On much we agree, on the result we differ. The extent of our disagreement is discussed later in this judgment. I propose to follow my colleague in referring to the appellant as "the Union" and to the respondents collectively as "Vetsak".
This is the first occasion, according to counsel, that this court has been called upon to deliberate on the dismissals by an employer of employees engaged in a lawful and legitimate strike. The strike was lawful because all the statutory prerequisites for it had been
complied with; and legitimate because it was instigated and pursued for a legitimate objective, the attainment, through a process of collective bargaining, of more favourable terms for a new statutory wage agreement for the metal industry.
We were invited by counsel to formulate guidelines as to the
3
circumstances in which the dismissal of workers participating in a lawful strike would constitute an unfair labour practice in terms of the Labour Relations Act 28 of 1956 ("the LRA"). In finding an unfair labour practice the tribunal concerned is expressing a moral or value judgment as to what is fair in all the circumstances (cf Media Workers Association of South Africa and Others v Press Corporation of South Africa Ltd ("Perskor")1 992 (4) SA 791 (A) at 798G, 802A; Atlantis Diesel Engines (Pty) Ltd v National Union of Metlworkers of South Africa [1995] ZASCA 30; 1995 (3) SA 22 (A) at 33A-B; National Union of Mineworkers and Others v Free State
Consolidated Gold Mines (Operation) Ltd - President Steyn Mine; President Brand Mine;Freddies Mine ("NUM v Free Sate Cons") [1995] ZASCA 109; 1996 (1) SA 422 (A) at 4461). The test is too flexible to be reduced to a fixed set of sub-rules; which is why one is somewhat sceptical of recent attempts by the Labour Appeal Court ("the LAC") and
4
academic writers to typify and rank the considerations which are to
be factored into a finding of fairness. (See, for example, Black
Allied Worker Union and Others v Prestige Hotels CC t/a Blue
Waters Hotel (1993) 14ILJ 963 (LAC) and the debate in cases such
as NUM v Black Mountain Mineral Development Co (Pty) Ltd
(1994) 15 ILJ 1005 (LAC and Cobra Watertech v National Union
of Metalworker of SA (1995) 16 ILJ 607 (T); Le Roux and Van
Niekerk, The South African Law of Unfair Dismissal 304-310).
The most one can do is to reiterate that there are two sides to
the inquiry whether the dismissal of a striking employee is an unfair
labour practice, the one legal, the other equitable. The fitst aspect
is whether the employer was entitled, as a matter of common law,
to terminate the contractual relationship between them - and that
would depend, in the first place, on the seriousness of its breach by
the employee. The second aspect is whether the dismissal was fair -
5
and that would depend on the facts of the case. There is no sure correspondence between lawfulness and fairness. While an unlawful dismissal would probably always be regarded as unfair (it is difficult to conceive of circumstances in which it would not), a lawful dismissal will not for that reason alone be fair (cf NUM v Free State Cons,supra, at 446F-G). Nor is there an exact correlation between the lawfulness of the strike and the unlawfulness and/or unfairness of the dismissal of a striking employee. Because a strike is lawful it does not follow that the dismissal of a striking employee will be unlawful or unfair; conversely, because the strike is not lawful or legitimate it does not follow as a matter of course that the employer is free to dismiss his striking workers (cf Marievale Consolidated Mines Ltd v President of the Industrial Court and Others 1986 (2) SA 485 (T); Sasol
6
(1990) 11ILJ 1010 (LAC) at 1021B-D, 1035G-H). Counsel for the appellant conceded, fairly, that a point is reached in every strike, lawful or unlawful, when an employer in fairness will be justified in dismissing his striking employees, not for striking as such, but for their prolonged absenteeism. When precisely that point is reached is ultimately a matter for the courts; and because the test is so broadly formulated it is no simple matter for parties to predict the decision of the court. How difficult that can prove to be is aptly illustrated by the outcome of these very proceedings. What one gains in flexibility, one loses in certainty.
The ultimate determinant is therefore fairness and not the lawfulness of either the dismissal or the strike. That does not mean that the lawfulness or otherwise of the conduct of either party or of the strike is irrelevant. These can be very real factors in the determination of what is fair in the circumstances (cf Natal Die
7
Casting Co (Pty) Ltd v President Industrial Court and Other (1987) 8 ILJ 245 (N) at 251A-C; Performing Arts Council of the Transvaal v Paper Printing Wood and Allied Workers Union and Others ("PACT") [1993] ZASCA 201; 1994 (2) SA 204 (A) at 216D-F; NUM v Free Sate Cons 447J-448B). More tolerance than otherwise may be required of an employer in the case of a lawful strike. Some employers can afford to be more tolerant than others; it depends upon their vulnerability. Paradoxically, the more effective the strike, the sooner the employer may have to consider replacing the striking employees if it feels unable to meet the demands or compromise seems unlikely. Because collective bargaining is "the means preferred by the Legislature for the maintenance of good labour relations and for the resolution of labour disputes" (South African Commercial, Catering and Allied Workers Union v OK
Bazaars(1929) Ltd [1995] ZASCA 70; 1995 (3) SA 622 (A) at 628B) and because
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"[t]he freedom to strike is integral to the system of collective bargaining", ibid, a dismissal for no other reason than that the employee participated in a lawful strike, with the objectives of which the employer is out of sympathy, will not be regarded as rational and fair. The rationality of the conduct of the respective parties will always be a factor; so too their flexibility and
bona fides, the cause, purpose and continued "functionality" of the strike, the financial and economic repercussions for both sides of the strike and of the dismissals, the ability of the employer and his employees to absorb the harm done thereby and the duration of the strike, actual and anticipated. There are, I am sure, other considerations as well. The relevant factors cannot all be captured in a single
formula or formulation.
The fairness required in the determination of an unfair labour practice must be fairness towards both employer and employee.
9
Fairness to both means the absence of bias in favour of either. In the eyes of the LRA of 1956, contrary to what counsel for the appellant suggested, there are no underdogs.
Thus far I am in substantial agreement with the views expressed by Smalberger JA. I agree in particular with his interpretation of s 17C(l)(a) of the LRA regarding the facts which this court may take into account in determining an appeal.
The central issue in this appeal is whether the issue of the ultimatum by Vetsak and the consequent dismissals of the workers who failed to respond thereto, constituted an unfair labour practice.
The strike was the sequel of negotiations at national level, a legitimate manoeuvre by the Unions to attempt to force SEIFSAs hand. Notwithstanding the strike the negotiations were not discontinued. Smalberger JA regards this as the most critical consideration in the case. Several consequences, so he holds, flow
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from it.
First, because the strike was in support of negotiations at national level, it remained functional. When deadlock supervened at local level the situation simply reverted to what it was before and negotiations at national level took centre stage once again. What happened between Vetsak and its employees at local level thereupon became irrelevant. And because Vetsak and those of its employees who were members of the Union were indirectly parties to the negotiations at national level, the strike had never lost its functionality for them. That being so, it would be inimical to the process of collective bargaining to countenance the dismissal of workers participating in the strike. Secondly, because the strike was lawful it was unfair and hence impermissible to dismiss the workers unless there were compelling reasons to do so. None existed. Thirdly, because negotiations were still continuing at national level
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Vetsak's ultimatum was precipitate and hence unfair.
I disagree with all three propositions. My first observation is
that this was not the case pleaded or dealt with by the LAC or even
argued in this court. The Union's complaints were formulated in the
following terms in its amended "Statement of Case":
"The Respondents have acted unfairly and/or unreasonably in all or some of the following ways:
6.1
By refusing to move from their predetermined position in negotiations before and during the strike;
6.2
By dismissing the striking employees under the circumstances aforesaid;
6.3
By selectively refusing to reinstate their employees at Isando whereas they did so at Bothaville;
6.4
By failing to negotiate in good faith as regards the reinstatement alternatively re-employment of the dismissed workers;
6.5
By acting out of vexatious, unreasonable and irrelevant motives in refusing to reinstate, alternatively re-employ the dismissed workers;
6.6
By relying on an alleged repudiation by the dismissed employees of their contracts of service in justifying their dismissals."
6.1
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There is no mention in this statement of any of the points now made by my colleague. If the LAC overlooked any of them, it is because they had never been raised. I propose nevertheless to deal with each of them in the course of this judgment. To do so it becomes necessary to traverse, in somewhat greater detail, ground already covered by Smalberger JA in his judgment.
I commence with the significance of the shift in negotiations from national to local level.
Prior to the strike Vetsak's employees, through their shop stewards, handed the company a circular letter from the Union, addressed to "Managements in the metal industry" listing seven demands. Foremost amongst the demands was one for a wage increase. Vetsak responded on 29 July 1988, declining to negotiate at plant level because of the continued negotiations at national industrial council level. The meeting referred to by Smalberger JA
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took place at 07:55 between Otto and Coetzee, representing Vetsak,
and four shop stewards, amongst them Rivambo who appears from
the minutes of the meeting to have acted as their spokesman.
Vetsak, through Otto, reiterated its stance that the company did not
consider it appropriate to negotiate about the demands at plant level
because negotiations were being conducted at industrial council
level. But Rivambo insisted. Otto, after some discussion had taken
place, stated:
"These are all conditions of service, which governed at the
industrial council. How can we go here at the bottom and
negotiate?
Rivambo: Let me put it so. If Vetsak can agree they can
implement or they can meet this demand, this company will
be exempted from the strike."
Management relented. Rivambo then said:
"If we are going to negotiate in good faith .... with an open mind, we must go issue by issue item by item."
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Each demand was discussed at some length. Management was prepared, on the issue of public holidays, "to give the workers the 1st of May as a public holiday at Vetsak, but only if the workers call off the strike"; to make representations to SEIFSA on the issue of paternity leave; and to give an undertaking that any instances of racial discrimination at the plant would be dealt with without delay. But an increase in wages it insisted it could not afford. Such an increase would eventually lead to a closing of parts of the plant and to further retrenchments.
The meeting adjourned to enable the shop stewards to report
back to the workers and a second round of negotiations commenced
at 11:30 when Otto once again informed the shop stewards that
Vetsak could not move on the question of a wage increase.
Rivambo, according to the minutes, then stated:
"Yes, I think then the strike is to continue. The name of the strike is a Why-Why strike.
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Otto: A what?
Rivambo: A Why-Why strike, it is unlimited till you meet the
demand,
Coetsee: Until we meet the demand?
Rivambo: Yes ...
Coetsee: So you don't want to negotiate?
Rivambo: We can negotiate as we are negotiating now but
this means that you are rejecting all the demands at this
stage."
The shop stewards then reverted to the Union and the workers
and at 14:00 the meeting resumed. The following exchange took
place:
Otto: Okay, now the workers, are they saying that we must
negotiate here at Plant level, are you happy with that or
what?
Rivambo: If we ... we can negotiate from the Plant level ...
Otto: Is that what they want to do or not?
Rivambo: They want to negotiate from the Plant level. That
is why we are (?)
Otto: So you are telling me, that you are wanting to negotiate
at Plant level rather than at Industrial Council?
Rivambo: Exactly.
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Otto You don't want to negotiate at Industrial Council? Rivambo: What we are doing is to negotiate from the Plant level. And if you agree to the demands in question, we will tell the striking committee that our management has agreed on this.
Rivambo: Then they can make an exception and we can be exempted from the strike."
The meeting concluded with Otto making the following plea:
"Rivambo: So we are still where we were with the second meeting?
Otto: That is right.
And I urge you to speak to the workers and help them to think this thing through what they are doing with the strike. They are causing a lot of damage to Vetsak. Vetsak is going to lose a lot of clients and if we lose clients that means there is no business, and if there is no business, there is no money to pay wages. So we want you to think this thing through tonight and to give us an answer tomorrow morning. Speak to the workers there, try to convince them it is not worth this problem that we have got here. It is not worth losing your job about. All right?"
The next day, 4 August 1988, Vetsak sent a telex to the
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Union with an appeal to urge the workers to resume their duties. There was no reply. No further approaches were made by the workers, the shop stewards or the Union throughout this period. By Friday, 5 August, the workers had still not returned to work and the management thereupon issued the ultimatum advising the striking workers to return to work at 7 a.m. on the Monday or face dismissal. A copy of the ultimatum was telexed to the Union.
From the above exchanges it is plain: (a) that the shop stewards prevailed on Vetsak to negotiate at plant level; (b) that the workers were consulted throughout the proceedings; (c) that they were prepared to exempt Vetsak from the strike if Vetsak were prepared to meet their demands, irrespective of what happened at national industrial council level.
The shop steward meeting had thus, at the insistence of the shop stewards, become the chosen forum of negotiations between
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these employees and this employer. Their focal point had shifted from national level and national issues to local level and local
issues. They were no longer merely represented as minor constituents amongst many at a distant level by remote negotiators bargaining on matters of common concern for the whole industry. For them it had become a matter of immediacy and a direct confrontation, man to man, about Vetsak's ability to afford an increase in wages and local issues such as racial discrimination at the workplace. It was the workers, not the Union or the trade
union organisation to which the Union belonged, who had taken command of the negotiations. This was not simply a token demonstration by the workers in support of negotiations at national level: they regarded themselves as free to break ranks and to enter into a separate deal with Vetsak, exempting it from the strike if their demands were met.
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Although the demands were the same as the demands being debated at national level the crucial issue, it is clear from the minutes, was the increase of wages. The shop stewards were in constant communication with the workers, who were thus directly involved in the negotiations at every stage of the proceedings. Time and again Vetsak's representatives assured the workers that the company could not afford an increase and that it would mean the closing of sections of the plant and a further retrenchment of workers. Time and again the workers insisted that the current wages were inadequate. It was essentially about wages that the deadlock developed.
It is, with respect, quite unrealistic to suggest that when this happened the spotlight simply returned to the national forum, that the status ante quo was simply restored, as if the contretemps at plant level was a local aberration, an irrelevant interlude, and that
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the strike remained fully functional because negotiations at national level had never been interrupted. The truth is that the impasse was no less real for being localised. The employees were adamant that they were not going to budge. The employer knew that it could not
afford to meet the demand. There was no prospect of either side moving towards the other. Negotiations, having been explored and exhausted, could serve no further purpose. Whatever the position for other negotiating parties at national level, for these parties, in the light of what had occurred between them, the strike was no longer functional.
My colleague takes the view that it would generally speaking be unfair "to dismiss workers participating in a lawful strike unless there were compelling considerations for doing so." If this dictum implies that there is an onus of justification on the employer, I have difficulty in supporting it. Once the facts are established an onus
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is not appropriate in the evaluation of issues of fairness. While the lawfulness of a strike is a factor, it is not an overriding factor. In any event, the use of the epithet "compelling" burdens an employer with an arbitrary and to my mind unjustifiably high and demanding standard of justification.
My colleague, dealing with the strike at national level, can find no "compelling" reasons for the dismissals of the workers in this case which would render them fair. But it is a question of fairness to both sides. That question, especially the fairness of the issue of the ultimatum, cannot be divorced from the events preceding it.
The minutes reveal: (a) that the shop stewards insisted that all their demands be met; that they were not prepared to compromise; and that the strike would continue indefinitely until Vetsak had capitulated; (b) that management from its side was
22
prepared to meet the shop stewards on all the demands except the wage increase; and (c) that the shop stewards were not prepared to accept or discuss Vetsak's assurance that it was unable to afford the required increase in wages; and that management would have to close down certain sections of the plant and increase retrenchments if it were forced to pay it.
Whatever the situation at national council level, at plant level there was clearly deadlock. Vetsak, knowing that it was unable to compromise on the demand for an increase in wages, was thus faced
with the prospect of being without its labour force for an indefinite period.
It is in that sense that the "bad faith" findings of the Labour Appeal Court must be viewed. Smalberger JA has already quoted the passage at 573F-J of the reported judgment (National Union Metalworkers of SA
v Vetsak Co-operrative Ltd and Others (1991)
23
12 ILJ 564 (LAC))
"... that it was the attitude of the shop stewards, led by Rivambo, that the strike would continue until the demands were met. The industrial court found that this proved that the workers were not negotiating in good faith. One can hardly criticize the court in arriving at this conclusion."
Other relevant passages are:
"The stated intention merely confirms and underlines the uncompromising stance adopted and almost irresponsible approach of the shop stewards." (at 575A-B)
And again:
"The negotiations then proved, in our view and in the view of the industrial court, not to have been bona fide." (at 575F)
And again:
"The appellants were paying lip-service to the requirement of bona fide negotiations." (at 576C)
Referring to Vetsak the Labour Appeal Court found:
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"Notwithstanding the fact that the stance adopted by the respondents [Vetsak] was properly motivated, the response elicited was the statement that the strike would continue indefinitely." (at 574C-D)
And again:
"The respondents, on the evidence before us, at all times acted rationally and reasonably. Where concessions could be made, whether on the basis of the SEIFSA offer or otherwise, those were made. It explained that higher wages would result in retrenchment, which they wanted to avoid. The shop stewards' attention was drawn to the fact that some nine members of the security force were to be retrenched on 15 August. The union knew about this but notwithstanding the fact that it ought to have been common cause the shop stewards seemed not to know about this or in any event could not be bothered thereby." (at 574E-F)
These findings show that the shop stewards remained adamant in their demands, were not open to reason and persuasion, insisted on complete capitulation by Vetsak; and hence that the negotiations at plant level became "a sham" and an exercise in futility.
25
In that sense the bad faith of the shop stewards was causally relevant. In the light of the posture adopted by them Vetsak cannot
be blamed for believing that there were no prospects of an early solution an that it would be without its workforce for an indefinite period. Had it not been for the attitude adopted by the shop stewards it is conceivable that Vetsak might have delayed the issue of the ultimatum, depending on what advice it received from SEIFSA. But in the light of what had happened between management and the
shop stewards, management knew that irrespective of SEIFS A's recommendations there was no hope for an early settlement with its workforce. As it happens the industrial action was only called off by the unions on 18 August 1988. It was never intended to be a short-lived strike and that had been made very clear to Vetsak by Rivambo. On 5 August 1988, when the ultimatum was issued, it was impossible for anyone on either side
26
to predict its ultimate duration.
To expect of Vetsak simply to stoically await the outcome of what to all appearances would be protracted negotiations between SEIFSA and the unions at national level, would not be reasonable. Vetsak's attitude on 5 August 1988 was that "we have had enough",
that matters had to be brought to a head, one way or other, so that production could be resumed. The issue of the ultimatum at that point was the only reasonable means available to Vetsak to break the immediate deadlock. And it was not unfair to the workers: it
afforded them a further opportunity to reflect or to make fresh representations or to return to work or to face the consequences. Their spontaneous response was to crumple up copies of the ultimatum and throw them away. On the facts found by the LAC it cannot in my opinion be said that Vetsak acted unfairly towards the workers in issuing the ultimatum.
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It was not disputed that the conduct of the workers amounted to a breach of their contracts of employment justifying the cancellation thereof in terms of the common law. By withholding their labour, by intimating that they would continue to do so for an indefinite period and by failing to respond to the ultimatum which provided them with the opportunity of curing their breach, the employees repudiated their contracts of employment.
It was neither pleaded nor argued on behalf of the appellant that the ultimatum issued to the Isando workers was premature, unreasonable of defective. (Cf the PACT judgment at 216B-F). The view that the ultimatum was precipitate is advanced for the first time in the judgment of my colleague. I must record my respectful disagreement. The judgment poses the rhetorical question: if an ultimatum on the first day of the strike would have been unreasonable, why would one on the third day be reasonable? The
28
answer of course is: because of what happened in the interim, because of the intransigence of the workers (as found by the LAC), because of their failure to consider the implications for Vetsak and their co-workers if production was to come to a prolonged standstill, because of their expressed determination to persist indefinitely
with the strike until all their demands were met. How long is an employer to wait before it would be fair to issue an ultimatum? That question has to be answered by the employer in the light of circumstances then prevailing, without the insight of hindsight. In this case Vetsak was faced with the prospect of an indefinite standstill. In my opinion it was entitled to take the workers at their word that they were not going to return to work until Vetsak was defeated on the wage issue. It would have served no purpose to delay the ultimatum. The ultimatum was not premature.
Much was made of the situation in Bothaville. Vetsak itself
29
realised that the ultimatum which had been issued to the Bothaville workers was defective. To have proceeded to dismiss the workers on the basis thereof would have exposed Vetsak to a charge of having committed an unfair labour practice. In those circumstances Vetsak itself substituted a new ultimatum which complied with all formal requirements.
It was argued on behalf of the appellant that since Vetsak was prepared to issue a fresh ultimatum to the Bothaville workers it should have done the same at Isando and that its failure to do so offended against the imperative of parity, which requires that an
employer should be consistent in his behaviour towards all his employees (cf National Union of Metalworkers of South Africa and Others
v Henred Fruhauf Trailers (Pty) Ltd [1994] ZASCA 153; 1995 (4) SA 456 (A) at 463G-I; NUM v Free Sate Cons at450G-I).
I am unable to agree. The circumstances at Isando and
30
Bothaville were not identical. There were separate plants, separate workforces and separate ultimatums. A bad ultimatum at one plant does not necessarily contaminate a good ultimatum at another plant. The fresh ultimatums were issued as a matter of necessity, not caprice. In the result the Bothaville workers were given an additional opportunity to reflect on whether they should return to work. A concession to one group does not ipso facto translate into prejudice to another group. The failure to issue a fresh ultimatum to the Isando workers cannot therefore be held against Vetsak as an unfair labour practice.
There was a further difference between the situations at Isando and Bothaville respectively. After the new ultimatum was issued at Bothaville, Vetsak was persuaded to grant the Bothaville workers further extensions of time. The reason was that Vetsak received representations form the Town Council of Gotsong, the
31
local township from whose inhabitants the workforce at Bothaville was and would mostly be recruited, to give the workers a further opportunity to resume their duties, for fear of the disruptions and harm which could result from the dismissals of some and the employment of others from the area. The Bothaville workers were eventually reinstated. That is not proof of inconsistency. The special circumstances prevailing at Bothaville were absent at Isando. The two situations not being directly comparable, Vetsak's failure to grant similar extensions to the Isando workers does not, in my opinion, transform the ultimatum issued at Isando, otherwise good, into an unfair labour practice.
The situation at Bothaville is also used by Smalberger JA in his judgment to demonstrate that Vetsak could "tolerate the strike
without ultimately resorting to dismissal". At the meeting between Otto and the shop stewards, and according to its minutes, Vetsak
32
explained that if it remained without a workforce it would be compelled to close down sections of the plant and retrench further workers. This averment was not contradicted, either at the meeting
or before the industrial court. One does not know from the evidence or the findings of the LAC, what the situation was at Bothaville. Nor does one know what steps Vetsak took to absorb the temporary loss of its labour force at Bothaville. This was never explored in evidence and neither the industrial court nor the LAC made any findings in that regard. That being so, it is unsafe to regard Bothaville as the exact parallel of Isando and to draw inferences form a comparison between the two outlets. Non constat that if Vetsak could absorb the loss it was suffering at Bothaville it could also do so at Isando.
To sum up thus far. In my opinion it was not unfair to both sides for Vetsak to issue the ultimatum on 5 August 1988 and, when
33
the workers failed to avail themselves of the opportunity given to them to return to work, to dismiss them; consequently Vetsak did not commit an unfair labour practice in doing so.
There were a number of other arguments advanced by counsel for the appellant with which I now propose to deal.
One such argument was that Vetsak committed an unfair labour practice by failing to give each worker a hearing before the decision was finally taken to dismiss him. Otto's unchallenged evidence was that he appealed to the workers once again on the Monday morning to resume their duties. He extended the deadline to 09:30. It was only when they failed to make further representations or return to work that he commenced with the dismissals.
The workers acted collectively. Vetsak responded collectively. On the Saturday, the day after the ultimatum was issued, the
34
workers met to discuss their response. That response was to refuse to heed Otto's appeal on the Monday morning urging them to return to work. To insist on a separate hearing for each worker in those
circumstances would be to require Vetsak simply to go through the motions. On the facts of this case there was no duty upon Vetsak to accord each worker a further separate hearing before the dismissals were put into effect.
A further argument advanced on behalf of the Union was that it should have been consulted before the final decision was taken to dismiss the workers. There may be circumstances where it might be unfair for an employer not to do so. But this was not such a case. The Union had earlier been invited by telex to become involved at plant level but it failed to reply. The workers had consulted it before and after the ultimatum was issued. The shop stewards had intimated during numerous and lengthy meetings with
35
management that the workers were not going to return to work for the foreseeable future. The Union was itself committed to that stance in its negotiations at national council level. It is true that the Union's lawyer sent Vetsak a telex late on the Friday afternoon and again on the Monday morning suggesting further consultations, but these recommendations only reached Otto after the dismissals had already taken effect and contained nothing new to indicate that the deadlock on wages was capable of resolution. No trade union representative were present to make representations on behalf of the workers on the Monday morning. The matter was moreover one of considerable urgency for Vetsak. It had to make immediate arrangements to engage and train an alternative work force so that production could be resumed. The fact that circumstances compelled it to endure the situation at Bothaville did not oblige it to do likewise at Isando and to refrain from making any effort to
36
contain the damage at Isando. In the circumstances of this case it was not, in my view, an unfair labour practice to implement the dismissals without first consulting the Union.
The next argument was that dismissal is a course of last resort (cf NUM v Free State Cons supra, at 448H, 450G) and that fairness required that Vetsak should have considered certain other options in preference to dismissal. The options said to be open
to the company were (a) to sit out the strike; (b) to engage temporary workers pending the outcome of the strike at national council level; or (c) to combine the dismissals with offers to re-employ the dismissed workers when and if the strike should eventually end. A solution along any of these lines would no doubt have suited the workers, but would it also have been fair to the employer? I think not. One of the major considerations for concluding that it was not unfair of Vetsak to issue the ultimatum was that it did not know for
37
how long it would be forced to labour without a labour force. This consideration affects all three of the suggested courses of action. Vetsak could not know, at the time of making the decisions to
issue and implement the ultimatum, for how long it would find itself either without any labour or with only "scab" labour. Such labour can generate its own peculiar set of disruptive problems. It seems to me that if the initial decision to issue an ultimatum was fair in all the circumstances, as I think it was in this case, an employer cannot be criticised, if his employees remain recalcitrant, from implementing it. And that, unpalatable as it may be to them, is a consequence of their own conduct which employees must be prepared to face. That in turn implies that it is prima facie not unreasonable or unfair for an employer to refuse to re-employ workers who had been dismissed properly and fairly. Depending on the circumstances, there may be situations where it would be unfair
38
for an employer to refuse to re-employ his dismissed workers. But no case has been made out in these proceedings that Vetsak, given
the history of the matter, acted unfairly in refusing to negotiate about the reinstatement of its dismissed employees.
None of the grounds advanced by counsel for the appellant can in my opinion serve as an adequate reason for coming to a conclusion contrary to that of the industrial court or the LAC. And since the dismissals must stand, the question of re-instatement does not arise.
As to costs no cogent reason has been advanced why costs should not follow the result. There was some argument that Vetsak, even if successful, should be penalised by a special order for costs. There is no basis for such a submission. The LAC found that the workers were to blame for the debacle, not the employer. This court is bound by that finding. Both sides employed two counsel
39
in the appeal. They were justified in doing so. The appeal is dismissed with costs, including the costs of two counsel.
P M Nienaber Judge of Appeal
Concur
Marais JA Zulman AJA
CASE NO: 295/93 EB
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA
Appellant
and
VETSAK CO-OPERATIVE LIMITED
1st Respondent
ISANDO INDUSTRIES (PTY) LIMITED
2nd Respondent
TURIN PRESSING (PTY) LIMITED
3rd Respondent
CORAM: SMALBERGER, NIENABER, MARAIS, SCOTT
JJA et ZULMAN, AJA
HEARD: 2 MAY 1996
DELIVERED: 31 MAY 1996
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